Liberia: Parties in Taylor Trial Make Appeals Submissions

On April 26, 2012, Trial Chamber II of the Special Court for Sierra Leone (SCSL) convicted Taylor of aiding and abetting the commission of serious crimes including rape, murder, and destruction of civilian property committed by the Revolutionary United Front (RUF) and Armed Forces Revolutionary Council (AFRC) forces in Sierra Leone from November 30, 1996 to January 18, 2002.

The judges further found that Taylor planned an attack on Freetown, the capital of Sierra Leone. On May 30, 2012, the judges sentenced Taylor to a jail term of 50 years for these crimes.

Today, the parties made oral submissions to the Appeals Chamber. Most of the submissions were about the limits of criminal liability for aiding and abetting a crime. In particular, the parties debated the required mental state: whether Taylor was guilty if he knew there was a substantial likelihood his assistance would result in the commission of a crime, or whether he intended to assist the commission of a crime. The parties also debated whether assistance had to be given to a crime "as such," or whether he could be convicted for giving other types of assistance that facilitated crimes. In addition, the parties gave submissions on the Trial Chamber's reasoning behind Taylor's sentence. Their submissions are summarized below.

Did Taylor have to Assist a Crime "As Such" to be Convicted?

Much of the debate was about the exact nature of Taylor's assistance. In particular, the parties debated whether his assistance was to crimes "as such" or for other purposes and whether Taylor intended to assist in the commission of crimes.

The prosecution argued that for a conviction of aiding and abetting, the accused has to provide practical assistance, moral support, or encouragement to the crimes and that the accused's assistance had a substantial effect on the commission of the crime. Moreover, the prosecution said that for a finding of aiding and abetting, SCSL jurisprudence requires a finding that Taylor's assistance was intentional and that he was aware of the substantial likelihood that his acts would assist the commission of the crimes. The assistance does not need to be carried out with the purpose to commit the crime. Therefore, according to the prosecution, whether he intended to assist crimes "as such" is irrelevant.

The defense submitted that for aiding and abetting, the reference point is always the crime, "as such." The defense submissions suggested that acts of assistance that are not directed to crimes "as such" cannot be considered a substantial contribution to the crime necessary for an aiding and abetting conviction. The defense argued that Taylor's assistance was inherently geared toward combat: it was ammunition to support a military campaign. Even when a bloody civil war is going on, the defense argued, this is not inherently criminal assistance.

Did Taylor have to Intend to Assist Crimes to be Convicted?

The defense suggested that customary international law requires a "purpose" element for proving aiding and abetting. It argued that "purpose" meant that an accused intended to assist another person or group, not that he intended the crimes committed. In other words, the defense argued that the act of assistance must have been done with the purpose of assisting, but this is separate from intending that assistance to facilitate crimes.

According to the prosecution, this argument is incorrect. Under this approach, the prosecution suggested, if a person assists someone knowing that a crime will be committed, but they do it for greed, political advantage or another purpose, they cannot be held responsible for aiding and abetting. This "purpose" element is not an element of aiding and abetting under international criminal law, the prosecution submitted, nor was it a part of customary international law.

The prosecution argued that Taylor intended the crimes committed by the RUF and their campaign of terror. However, knowledge was all that is required to prove aiding and abetting. The prosecution submitted that Taylor's actions show his intent: although Taylor admitted he knew about the RUF's atrocities, the Trial Chamber found he continued to send them arms and ammunition. This indicates his intention for the RUF's crimes to be committed, the prosecution argued, meaning the Trial Chamber's findings would meet a "purpose" mens rea standard.

The defense argued that the Trial Chamber's findings would not meet a "purpose" standard. The Trial Chamber found that Taylor knew his support would provide practical assistance, encouragement, or moral support to RUF/AFRC in the commission of crimes during the course of military operations in Sierra Leone, the defense noted. However, the defense submitted, the Trial Chamber did not address whether Taylor knew that a crime would occur or that there was a possibility that the crime might occur because of his assistance. This reasoning does not meet a "knowledge" standard and certainly does not meet a "purpose" standard, the defense argued.

Furthermore, the defense noted, the Trial Chamber's findings on Taylor's mental state were insufficient. In the Sierra Leone conflict, there were periods that were more violent than others and there periods with more efforts of reconciliation than others. However, the Defense argued, the Trial Chamber failed to make any findings about Taylor's mental state at different stages of the conflict. This suggests the Trial Chamber did not consider this, the defense argued, noting that the prosecution has argued that Taylor had the same mental state for the entire duration of the war. This is not likely true, given the complexity of events, the defense argued.

If Taylor's Assistance was not Directed at a Crime, Can the Assistance be Considered Substantial?

The parties also addressed whether acts of assistance not "specifically directed" to the commission of a crime could meet the requirement for aiding and abetting that assistance substantially contributes to the commission of the crime.

The prosecution contended that to be convicted of aiding and abetting a crime, an accused has to contribute to the crime, not an enterprise. According to the Prosecution, a contribution that is not "specifically directed" at a crime cannot be substantial, which is a requirement of aiding and abetting.

According to the defense, the Trial Chamber findings did not make an analysis of "substantial" or "specifically directed" sufficient for an aiding and abetting conviction. In fact, the defense argued, the Trial Chamber took the opposite approach, finding that if you do anything to perpetuate the existence of an organization that you know engages in criminal actions, then that alone is sufficient to find you guilty of assisting any and all crimes committed by that group. This is an inappropriate standard for aiding and abetting convictions, the defense argued.

Bullets can be used criminally or lawfully, the defense contended. Yet, the defense noted, even given the context of a bloody civil war, the Trial Chamber made no finding about which percentage of which bullets were used lawfully or unlawfully and made no finding that bullets provided by Taylor were used in any crime. The Trial Chamber's reasoning did not find any links between Taylor's assistance and the commission of the crimes: the assistance was remote in time from the commission of the crimes, there was no finding on a causal link, and there was no temporal proximity, the defense argued.

Should a Sentence for Aiding and Abetting be Lower than for Direct Participation?

The parties also made submissions about the Trial Chamber's reasoning in sentencing Taylor to 50 years of imprisonment. This sentence is similar in length to previous SCSL sentences for those convicted of direct participation in serious crimes. The Appeals Chamber requested submissions on whether some forms of liability should be considered less serious that others when it comes to sentencing.

The prosecution argued that there is no hierarchy between the different modes of liability according to the SCSL Statute or in customary international law. If the legal characterization of a crime is anything at all, it is but one minor factor to be considered in sentencing, the prosecution contended.

According to the prosecution, sentences must reflect the totality of criminal conduct and the gravity of crimes, a principle firmly supported in case law of international criminal tribunals. The tribunal should consider the totality of crimes committed, the conduct of accused, and the consequences of crimes, the prosecution argued. The category of crimes should not be considered in determining a sentence, and to determine a sentence based on a hierarchy of crimes would be contrary to a fundamental principle that sentences must be individualized to the circumstances of the case, the prosecution argued.

The defense argued that aiding and abetting warrants a lower sentence than conviction for direct forms of perpetration. The Trial Chamber should weigh the gravity of the offense and the conduct of accused and that generally an aiding and abetting conviction warrants a lower sentence than more direct forms of participation. The defense acknowledged that there is no absolute requirement that a person convicted of aiding and abetting receive a lower sentence but argued that this is generally the case. This general principle should have been applied by the Trial Chamber, the defense argued, but it was not. Moreover, the defense said, the Trial Chamber gave no valid reason for departing from this general principle, resulting in a manifestly unfair sentence for Taylor.

Tomorrow the parties will have an opportunity to make responses to the arguments submitted today. After the oral submissions have concluded, the Appeals Chamber will retire to consider their verdict.

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